Journal Article

The professor, the patent, and the perilous life of the PHOSITA

Christopher Wadlow

in Journal of Intellectual Property Law & Practice

Volume 6, issue 1, pages 20-24
Published in print January 2011 | ISSN: 1747-1532
Published online January 2010 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpq160
The professor, the patent, and the perilous life of the PHOSITA

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It's no joke being a Person Having Ordinary Skill in The Art (PHOSITA) when the entire German chemical industry is out to kill you. Or at least, that's what you might have believed if you read what one of Britain's leading organic chemists, Professor Sir William Pope, FRS, had to say in a passage originally published in a book called Science and the Nation (1917), reproduced not once, but twice, in the Journal of the Patent Office Society (1918, 1926), and accepted as true by a Federal judge in Delaware (1924). According to Professor Pope, anyone who was tempted to repeat the method of German Patent No. 12,096 would be ‘pretty certain to kill himself’ while he was doing so.

Unfortunately for PHOSITAs everywhere, Professor Pope neglected to enlighten his readers with details of the perils lurking beneath surface of the patented method. Nor did he explain why anyone should have wanted to repeat that method in 1917, when the patent had been applied for as long ago as 1880, and its otherwise unknown inventors had allowed it to lapse as early as 1884.

As a rather preposterous example of wartime propaganda, Sir William's strictures on the Salzmann and Krüger patent could and should have been consigned to history with the signing of the Armistice. Instead, his naming-and-shaming of this apparently innocuous patent and its equally blameless inventors has continued to be taken at face value, even into the present century.

Journal Article.  4028 words. 

Subjects: Arbitration ; Intellectual Property Law

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